Allahabad High Court
Naveen Alias Nirmal Mirchandani And ... vs State Of U.P. And 2 Others on 2 June, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:94356
Court No. - 52
Case :- APPLICATION U/S 528 BNSS No. - 12403 of 2025
Applicant :- Naveen alias Nirmal Mirchandani and another
Opposite Party :- State of U.P. and 2 others
Counsel for Applicant :- Bhanu Prakash Verma
Counsel for Opposite Party :- G.A.
Hon'ble Vikas Budhwar,J.
1. Heard Sri B.P. Verma, learned counsel for the applicant as well as Sri Kuldeep Singh Chauhan, learned AGA for the State.
2. This application u/s 528 of BNSS has been preferred for quashing the entire proceedings of Complaint Case No.2397 of 2018 pending in the court of Civil Judge (Junior Division) Fast tract court/Judicial Magistrate Mathura, Kishan Gopal Agarwal versus Parth Krishan and others under sections 366 376 IPC Police station Vrindavan district Mathura on the basis of the compromise application dated 16.8.2023.
3. Learned counsel for the applicant has submitted that a first information report was lodged by the opposite party no. 2 being FIR No. 15 of 2012 under Sections 363, 366 IPC with an allegation that on 03.01.2012, the applicant along with one Parth Krishan Upadhyay had committed the said offence with the minor daughter. A statement under Section 200 of the Cr.P.C. was recorded wherein so far as the allegation referable to Section 376 IPC is concerned, the same was inflicted upon the Parth Krishan Upadhyay. Learned counsel for the applicant submits that a compromise stood entered into between the parties and insofar as Parth Krishan Upadhyay is concerned, he had preferred Application u/s 482 No. 28691 of 2019 which came to be disposed of on 01.08.2019.-
"Sri Rajendra Prasad Tiwari, Advocate has filed vakalatnama and the same is taken on record.
Sri B.P. Verma, learned counsel for the applicant and Sri Rajendra Prasad Tiwari, learned counsel for the opposite party no. 2 and Sri G.P. Singh, learned A.G.A. for the State are present.
The present application has been filed with a prayer to quash the Case No. 1109 of 2019, arising out of Case Crime No. 88 of 2012, under Sections 366 and 376 IPC, P.S. Vrindawan, District Mathura.
Learned counsel for the applicant has stated that in the present case compromise has taken place between the accused-applicant no. 1, who is husband of the opposite party no. 2/complainant of the case, hence the entire criminal proceedings needs to be quashed in the light of law laid down in Gian Singh Vs. State of Punjab and Another (2012) 10 SCC 303, because there is no possibility of conviction in this case. He has drawn attention to page 102 of the paper book on which an affidavit has been filed by the accused-applicant before the Judicial Magistrate, Mathura, in which, it is mentioned in paragraph 2 that parties have entered into compromise as some persons of the society had mediated the matter, the terms and conditions are also laid down in paragraph 103 of the affidavit.
The learned counsel for the applicant has filed statement of victim recorded under Section 164 Cr.P.C. on 25.02.2012, in which, she has stated that O.P. No. 3/victim herself had gone with the accused applicant in Arya Samaj Mandir in Delhi and had married him, which was also registered on 01.02.2012. She was major and was staying with the applicant as husband and wife. The subsequent statement which has been given by the victim before the trial court on 19.05.2015 under Section 200 Cr.P.C. is diametrically opposed to the statement given by her earlier under Section 164 Cr.P.C. because in the statement under Section 200 Cr.P.C. she has stated that on 03.1.2012, at about 10:00 am, she was abducted by the accused along with other co-accused and she was taken to Delhi, where she was raped by the accused applicant against her wish giving threat that she would be eliminated. Her marriage was also registered forcibly.
Learned counsel for the opposite party no. 2 expressing the same view stated that criminal proceedings require to be quashed because compromise has been entered into between the parties.
Learned A.G.A. has vehemently opposed the prayer of quashing and has stated that reliance which has been placed by the learned counsel for the applicant in Gian Singh's case is not applicable in the present case because offence alleged to have been committed by the accused-applicant is a heinous offence which falls in the category of rape, hence the same cannot be allowed to be compromised even if settlement has taken place between the parties.
I have gone through the F.I.R..
According to F.I.R., which has been lodged by father of the victim it has been stated that on 3.1.2012 his daughter had gone to market at about 10:00 am for purchasing some articles and when she did not return till long, he had tried to search for her and in the process Ashok Kumar and Brajesh Kumar of the said locality had apprised him that his daughter had been seen by them with accused Parth, Shreshtha, Ram Kumar and mother of Parth i.e. Smt. Neeru in an Innova Car and, therefore, he had suspicion that all these fellows had enticed his minor girl. After investigation into this matter, final report was submittd by police finding the case not proved against the accused persons. Thereafter, protest petition was filed from the side of opposite party no. 2 and after consideration of the same, accused-applicant, co-accused Naveen and Shreshtha have been summoned for offences under Section 366 & 376 IPC to face trial. The said order was passed after treating the final report as a complaint and after having recorded statement of the complainant as well as two witnesses namely Lakshmi Agarwal and Gopal Kishan, who were recorded as PW-1 and PW-2. Copy of protest petition has not been filed by the learned counsel for the applicant, however, the statements of the victim and two witnesses i.e. Lakshmi Agarwal and Gopal Kishan have been annexed at page 85, 87 and 90 respectively of the paper book.
In her statement u/s 200 Cr.P.C. the victim has stated that on 3.1.2012 at about 10:00 am, applicant along with other co-accused namely, Naveen and Shreshta had kidnapped her and had taken her to Delhi and the accused-applicant no. 1 had committed rape upon her against her wish and had forcibly married her giving her threat to life and got the same registered also. Because the F.I.R. had been lodged against the accused-applicant, hence she was also brought to Mathura for statement and she was given threat that if she does not depose as per direction, her brother would be killed and, therefore, she had given statement as per direction given by the accused-applicant. She was mentally and physically tortured by the accused-applicant and her family members and demand was being made of Rs. 25,00,000/- that the said amount should be brought by her from her parents and, thereafter, she was left at her home stating that when the said amount would be arranged, then accused-applicant should be informed. Parth Krishan Upadhyay had committed rape upon her even prior to marriage. In the said statement, she has also stated that when she told everything to her family members/parents, she was told by them that she should take divorce but for divorce the accused-applicant had refused and had told her that till amount of Rs. 25,00,000/- was paid, the divorce would not be granted, therefore, for giving divorce the accused applicant and his family members were consistently harassing the opposite party no. 2 making demand of Rs. 25,00,000/-.
PW-1, Laxmi, mother of the opposite party no. 2 has given statement that on 3.1.2010 when her daughter had gone out for purchasing article in the market, accused-applicant and other co-accused Shreshtha, Raj Kumar, Neeru and Naveen had put her daughter in an Innova Car and after making her smell some narcotic substance, she was got fainted and, thereafter, she was abducted to Delhi. In this regard her husband Kishan Gopal lodged a report as case crime no. 88 of 2012 against accused persons. The accused had threatened her daughter and because of that whatever was told to her to state, she had stated likewise because of fear. Her marriage was also got registered under pressure in Delhi and, thereafter, she was taken, after being threatened, to Allahabad and, thereafter, she was taken to Mathura under fear. Her daughter told her that prior to her marriage the accused-applicant used to have physical relationship with her under threat. After some days the accused-applicant started harassing her daughter and she was being threatened that if she does not bring Rs. 25,00,000/- from her parents, she should leave his house. The police had filed final report in the said case on which the C.J.M. had directed for further investigation. As soon as accused came to know about this fact, he started again threatening her daughter, because of which, he started to maintain silence under fear and when she tried to know everything from her, she divulged everything. She and her husband, looking to the future of her daughter, had given an affidavit to the Investigating Officer under fear from accused and, thereafter, the accused stated that now since affidavits have been filed, first F.R. must be submitted in this case and the same ought to be allowed also and besides that Rs. 25,00,000/- be paid to him then only he would leave chasing the victim/her daughter and then only he would give her divorce. After getting threat from the accused-applicant, applications were given on 12.2.2004 and 30.1.2014 and 26.6.2014 in court, of C.J.M. stating that I.O. had made no interrogation of her in the present case. Under the pressure from the accused, final report has been submitted by the Investigating Officer.
PW-2, Kishan Gopal, father of the opposite party no. 2, has stated the same version under Section 202 Cr.P.C., which has been given by PW-1.
On the basis of these statements the impugned summoning order has been passed directing the accused applicant along with other accused namely Naveen and Shreshtha to face trial under Section 363 and 376 IPC.
I find that no where in the F.I.R. age of the victim has been disclosed, therefore, it appears that she was major on the date of occurrence and I also find that marriage was registered of the accused-applicant with opposite party no. 2, certificate to that effect is at page-28 of the paper book. In the said certificate, the date of birth of the victim is recorded as 20.1. 1990, while the occurrence is reported to be of 3.1.2012. Copy of High-school certificate is also annexed which is at page 21 of the paper book in which date of birth is recorded as 20.1.1990 of the victim and by that her age on the date of occurrence would be about 21 years 11 month and 13 days i.e. she was major on the date of occurrence. The facts which have been narrated above clearly reveal that according to F.I.R. the opposite party no. 2 was stated to have been abducted by the accused along with other co-accused on 3.1.2012 while F.I.R. was lodged on 15.1.2012.
In view of above, I find that the statement made by the victim and the parents appear to be inherently improbable story and looking to the fact that the Investigating Officer had submitted closure report in this case earlier and, thereafter, on the statement of the victim and her parents, this case has been open against the accused applicant, who has been summoned along with two others under the above mentioned sections to face the trial appears to be misuse of process of court because the allegations made in the complaint is so absurd and inherently improbable that on the basis of the same no prudent person would be able to reach conclusion that there was sufficient ground to proceed against him. Therefore, relying on the condition no. 5 laid down by Hon'ble Supreme Court in State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604, I find it to be a fit case, wherein the prosecution of the applicant needs to be quashed. The relevant para no. 102 of the said judgment is as follows:-
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
Accordingly, this application u/s 482 Cr.P.C. is allowed and Case No. 1109 of 2019, arising out of Case Crime No. 88 of 2012, under Sections 366 and 376 IPC, P.S. Vrindawan, District Mathura stands quashed as against the applicant."
4. Learned counsel for the applicant further submits that since Parth Kishan Upathyay against whom the allegations under Section 376 of IPC was levelled and the matter stood compromised, thus, the applicants herein also preferred Application u/s 482 No. 34348 of 2023 in which on 12.10.2023, the following orders were passed.-
"1. Heard learned counsel for the applicants and learned A.G.A. for the State and perused the record.
2. This application under Section 482 Cr.P.C. has been filed by the applicants to quash the entire proceedings of Complaint Case No. 2397 of 2018, under Section 366/376 I.P.C., P.S. Vrindavan, District Mathura, pending in the court of Civil Judge (Junior Division) Fast Tract Court/ Judicial Magistrate, Mathura in pursuance of compromise dated 16.8.2023.
3. Learned counsel for the applicants submits that the parties have reconciled their differences and a compromise has been entered between them, copy of compromise deed dated 16.8.2023 has been annexed as Annexure 9 to this affidavit. Therefore, no useful purpose would be served in continuing the proceedings before the Court below and the same is not only sheer wastage of time of the Court but also abuse of process of law.
4. Learned A.G.A., however, submits that it is the concerned court below, which has to verify the fact as to whether the parties have entered into compromise, hence the applicants may approach the concerned court below and move an application with respect to compromise between the parties, which will be decided in accordance with law.
5. In view of above, without expressing any opinion on the merit of the case, both the parties are directed to appear before the Court below along with compromise deed as well certified copy of this order within two weeks from today. It is expected that Court below may fix a date for the verification of the compromise and after ensuring the presence of the parties, pass an appropriate order with respect to the same in accordance with law, as expeditiously as possible, preferably within a period of two months from the date of production of a certified copy of this order, if there is no other legal impediment. While passing the order verifying the compromise, the Court concerned shall also record the statements of the parties as to whether all the terms and conditions mentioned in the original compromise deed, so filed, have been fulfilled or not?
6. The Court in that scenario will allow the parties to obtain certified copy of the report as well as compromise and it will be open to the applicants to approach this Court again for quashing of the proceedings.
7. For a period of two months, no coercive action shall be taken against the applicants in the aforesaid case.
8. With the aforesaid directions, this application is finally disposed of."
5. Learned counsel for the applicants submits that a compromise have been entered into between the parties on 16.08.2023 and the same has been filed before the court of Civil Judge (J.D.)/F.T.C., Mathura which is Annexure-9 at page 57 of the paper book reference whereof has been made in para 14 of the application.
6. Payer in the present application is for a direction to the court below to verify the compromise so entered into between the parties.
7. Learned AGA, on the other hand, submits that though the offences under Section 363, 376 IPC are there but from the documents which are available on record, the allegations under Section 376 is not against the applicant.
8. Considering the submissions so made across the bar the application stands disposed of directing the applicants to submit a self attested copy of the application, certified copy of the order passed today and original copy of the compromise application by 20.06.2025 before the court below and on the said motion the court below shall make endeavour to put to notice the other party and thereafter verify the compromise application within a period of two months.
9. Till the verification is done in the compromise application so submitted by the parties, no coercive action shall be taken against the applicants in the proceedings of Complaint Case No.2397 of 2018, pending in the court of Civil Judge (Junior Division)/F.T.C/Judicial Magistrate Mathura (Kishan Gopal Agarwal versus Parth Krishan and others), under sections 366 376 IPC, Police station Vrindavan District Mathura.
10. The protection accorded to the applicants is only available subject to compliance of the terms and conditions and timeline as provided herein and in case of default, the order shall stand vacated without reference to the Bench.
Order Date :- 2.6.2025
Rajesh
